Date: 19990622
Docket: IMM-4031-98
BETWEEN:
HASSANALI JAN AHMAD NEJAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(revised version of oral reasons)
REED J.
[1] The applicant's counsel wrote on two occasions explaining to the relevant visa officers that the applicant needed a Farsi interpreter for his interview. The practice in the visa office in Poland was not to allow applicants to bring their own interpreter but to require them to pay for interpretation, which the embassy provided. The policy in Ankara, where the applicant was finally interviewed, was to require applicants to bring their own interpreter. Counsel for the applicant did not receive any response to either of his letters, one of which was sent to the Ankara visa offices, six weeks before the scheduled interview, which letters stated the need for an interpreter and sought instruction on how the applicant should pay for such.
[2] The applicant arrived for the interview having been advised by his counsel, who was in Canada, that the embassy would provide an interpreter for him. This was not the case, and when, at the commencement of the interview, the applicant discovered he needed an interpreter, he asked for an adjournment of the interview until later in the day to enable him to find someone. He returned with someone "off the street", whom the visa officer describes at the beginning of her CAIPS notes as speaking "broken Turkish". The person was an incompetent interpreter, as both the applicant and the visa officer subsequently recognized. Nevertheless, the interview continued.
[3] The respondent states that on two occasions the applicant was given the opportunity to have the interview rescheduled but elected, on the first occasion, to try to find an interpreter off the street and, on the second, to continue the interview despite the difficulties with the incompetent interpreter. It is therefore argued that the applicant waived the unfairness that existed in the procedure insofar as the lack of a competent interpreter was concerned.
[4] In my view, in order to have an effective waiver the reasonableness of the option that is offered as a cure for the unfair situation has to be evaluated in the light of all the circumstances.
[5] In this case, the applicant went to the interview expecting to have an interpreter provided. This expectation was the result of the visa office's non-response to counsel's letters. The visa office, itself, was thus very instrumental in creating the unfair situation. In order to get to the interview, the applicant and his wife had to obtain visas from the Turkish embassy in Tehran (they are Iranian citizens who reside there). They had to make arrangements and spend time and money coming from Tehran to attend the interview in Ankara. They were not accompanied by counsel and they were met with a totally unexpected circumstance. Counsel described his client's reaction as one of "panic". I am not persuaded that in the circumstances of this case, the declining of an offer to reschedule the interview can be characterized as a waiver of the applicant's right to a fair hearing.
[6] For the reasons given, this application will be allowed and the matter referred back for reconsideration by another visa officer.
"B. Reed"
Judge
TORONTO, ONTARIO
June 22, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4031-98
| STYLE OF CAUSE: HASSANALI JAN AHMAD NEJAD |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: TUESDAY, JUNE 22, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED J.
DATED: TUESDAY, JUNE 22, 1999
APPEARANCES: Mr. Barry E. Smurlick
For the Applicant
Ms. Cheryl D. Mitchell
For the Respondent
SOLICITORS OF RECORD: Schreiber & Smurlick
Barristers & Solicitors
288 Ottawa Street North
Hamilton, Ontario
L8H 3Z9
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990622
Docket: IMM-4031-98
Between:
| HASSANALI JAN AHMAD NEJAD |
Applicant
| - and - |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER